Is shoplifting a deportable offense?

by Atty. Emmanuel Samonte Tipon 

“Thou shall not steal.” – Eighth Commandment

Apparently stealing is so abominable an offense in the eyes of the Almighty that He equated it with killing, adultery, and false testimony when He specified stealing as one of the major major offenses that warrant condemnation as a capital sin.

For many years immigration judges and appellate courts have made stealing (including shoplifting) a deportable offense by characterizing it as a crime involving moral turpitude. See, for example, Wong v. INS, 980 F.2d 721 (1st Cir. 1992) and Silva v. INS, No. 02-CV-8903, Dist. Ct., E.D. Pa, May 2003.

That is why when our office had a case involving an alien student charged with shoplifting for taking a sandwich from a refrigerated cabinet in a convenience store and eating it right there, I suggested to my son Noel who was handling the case to fight it otherwise the student would be placed in deportation proceedings. He said that the evidence of the prosecution was strong because the closed circuit television had recorded the event and the store clerk had declared that he saw the alien take the sandwich, eat it, and left the store without paying for it. Nevertheless, Noel said he would try to plea bargain with the prosecutor so that the alien would be charged with a non-deportable offense. I cannot disclose what the plea deal was. The student was saved from deportation.

In the most recent shoplifting case, a U.S. Court of Appeals found the alien not deportable. Ronel, a Filipino citizen and a lawful permanent resident was charged under a Georgia statute with taking three video games from a Costco store “with the intent of appropriating [the] merchandise to his own use without paying for the same.” He pled guilty and was sentenced to twelve months’ imprisonment to be served on probation. Immigration authorities served him with a Notice to Appear, alleging that his shoplifting conviction rendered him removable because it constituted an “aggravated felony” within the meaning of 8 U.S.C. § 1227(a)(2)(A)(iii) in relation to 8 U.S.C. § 1101(a)(43)(G) which includes as an aggravated felony “theft offense[s] . .  for which the term of imprisonment [is] at least one year.”

The court said that the term “theft offense” was used in the “generic sense” in which the term is now used in the criminal codes in most states as “the taking of property . . . with the criminal intent to deprive the owner of rights and benefits of ownership, even if such deprivation is less than total or permanent.”

The Georgia statute provided: “A person commits the offense of theft by shoplifting when [he] . . .  with the intent of appropriating merchandise to his own use without paying for the same or to deprive the owner of possession thereof or the value thereof in whole or in part . .  : (1) Conceals or takes possession of the goods or merchandise of any store or retail establishment.”

The court explained that the statute was “divisible” rather than “categorical” because it requires either an intent to deprive (which falls under the generic definition of theft) or an intent to appropriate (which does not). A conviction under the Georgia statute for shoplifting with intent to “appropriate[e] merchandise to [one’s] own use without paying for the same” (the intent on which the charge against Ronel was based) does not constitute a theft offense within the meaning of 8 U.S.C. § 1101(a)(43)(G). The Georgia statute punishes both conduct that qualifies as a theft offense and conduct that does not.

The court concluded that a conviction for theft of merchandise with intent to appropriate it does not constitute a theft offense: the intent to appropriate does not encompass the intent to deprive, as the generic definition of theft requires. Thus, if Ronel was not convicted of a theft offense, he was not convicted of an aggravated felony, and his conviction cannot provide the basis for his removal. Ramos v. U.S. Attorney General, Nos. 11-14829 & 11-15945, (11th Cir. 02/19/13)

COMMENT:  In other words, an alien can only be deportable for having committed a theft offense if the indictment charges the alien with “intent to deprive the owner of rights and benefits of ownership,” but not if the indictment merely charges the alien with “intent to appropriate to one’s own use without paying for the same.” But if a person takes the property of another without paying for the same, is not the person depriving the owner of the rights and benefits of the property that was taken?

Susmariosep. What did God mean when He used “steal” in the 10 Commandments. Did He mean it in the “generic” sense or “non-generic” (brand name?) sense. Is the commandment “Thou shall not steal” categorical or divisible?


(Atty. Tipon has a Master of Laws degree from Yale Law School and a Bachelor of Laws degree from the University of the Philippines. He specializes in immigration law and criminal defense. Office: 800 Bethel St., Suite 402, Honolulu, HI 96813. Tel. (808) 225-2645. E-Mail: filamlaw@yahoo.com. Websites:  www.MilitaryandCriminalLaw.com; www.ImmigrationServicesUSA.com. He is from Laoag City and Magsingal, Ilocos Sur. He served as an Immigration Officer. He is co-author of “Immigration Law Service, 1st ed.,” an 8-volume practice guide for immigration officers and lawyers. Listen to the most funny, interesting, and useful radio program in Hawaii on KNDI at 1270, AM dial every Thursday at 7:30 a.m., rebroadcast at www.iluko.com. This article is a general overview of the subject matter discussed and is not intended as legal advice. No warranty is made by the writer or publisher as to its completeness or correctness at the time of publication. No attorney-client relationship is established between the writer and readers relying upon and/or acting pursuant to the contents of this article.)